M. K. SHAH, P. D. DESAI, J.

( 1 ) * * * *

( 2 ) THE claim for compensation arose out of an accident which occurred on July 10 1975 at about 11-45 A. M. behind Nyaya Mandir on the Madan Zampa Road in the city of Baroda. The appellant claimants who was at the material time aged about 12 was at that time returning from his school. Two of his friends accompanied him. The appellant was proceeding along the road from north to south. A truck bearing No. GTG 1100 which was proceeding in the same direction approached from behind and knocked down the appellant. The right foot of the appellant was crushed under the front left wheel of the vehicle. The appellant was immediately removed to the S. S. G. Hospital Baroda where on examinations it was found that as a result of the injuries the bones muscles and tissues of the right food were crushed. Operation was performed on the same day and the right foot of the appellant was amputated from above the ankle. The appellant was discharged from the hospital on July 31 1975 According to the evidence of the appellant as a result of the amputation he is required to use crutches. he has got an artificial leg prepared at Poona which he uses along with special shoes while going to the school. . . . . . . . . . . . . . . . . . . . . . . . . . . .

( 3 ) THE first question which arises for consideration is whether the Tribunals finding as to the contributory negligence of the appellant to the extent of 10% is just proper and legal. In dealing with this question it is required to be borne in mind that the appellant at the material time was aged about 12. He was therefore a child and not an adult person. In Halsburys Laws of England Third Edition Volume 28 paragraph 98 at page 93 are found the following observations which are relevant and which may therefore be quoted :a distinction must be drawn between children and adults for an act which would constitute contributory negligence on the part of an adult may fail to do so in the case of a child or young person the reason being that a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be naturally ignorant of danger or to be unable to fend for himself at all he cannot be said to be guilty of contributory negligence with regard to a matter beyond his appreciation but quite young children are held responsible for not exercising that care which may reasonably be expected of them. Where a child in doing an act which contributed to the accident was only following the instincts natural to his age and the circumstances he is not guilty of contributory negligence but the taking of reasonable precautions by the defendant to protect a child against his own propensities may afford evidence that the defen dant was not negligent and is therefore not liable. The question whether a child is of sufficient age and intelligence to realise and appreciate the risks he runs so as to be capable of being guilty of contributory negligence is a question of fact for the jury. These observations made by the learned authors are borne out by some of the leading decisions to which we shall now refer.

( 4 ) IN Yachuk v. Oliber Blais Co. Ltd. 1949 A. C. 386 the Privy Council was concerned with the case of an infant appellant nine years of age. He in the company of his younger brother aged seven made a false representation to an employee at the respondents gasoline station that he required some gasoline for his mothers motor car which was stuck down the street. The boys in fact wanted the gasoline to make torches to be used in a game out of sight of and some distance from the gasoline station. After procuring gasoline the appellant dipped a bulrush in the pail of gasoline handed it dripping to his younger brother and lighted it. The gasoline lying in the pail which was between the boys caught fire and the infant appellant was severely burned. On a claim by the child against the respondent for damages for negligence the Supreme Cour

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